The Power of the Nine

August 1, 2012

Let us spend a few minutes to consider the latest economic wisdom from the six men and three women who presently occupy our nation’s highest legal court. On the 28th of June, the U.S. Supreme Court finished releasing its opinions for 2012. It does this around the same time every year. Lawyers, law professors, and other jurists await and scrutinize the affair with great enthusiasm. However, most people take little interest in the season outside what is fed to them by the media fanfare. This is unfortunate, since these opinions are, in effect, dictatorial rulings on the law which markedly impact their lives and the lives of their neighbors. Then again, when more than forty percent of Americans chose not to participate in the 2008 election, why should they be expected to care about a function of government in which participation is not possible?

The media attention this year has been slightly higher than usual, with great speculation and reaction paid to the Obamacare case, National Federation of Independent Businesses v. Sebelius, which will be discussed towards the end of this article.

First, it is worthwhile to survey three of the other 2012 cases that impact our society’s economy: Christopher v. SmithKline Beecham Corp (the overtime case), Knox v. Service Employees (the unions case), and FCC v. Fox Television Stations, Inc. (the decency case).

Each of these is a case-in-point of the great power the Supreme Court has over economic affairs, as well as the dilemmas and injustices that are created when the court wields this power.

The Overtime Case

The first case is Christopher v. SmithKline Beecham Corp., the opinion for which was released by the Supreme Court on June 18. The back story is simple enough: A couple of big pharm reps, also known as “detailers,” were riding around one day and decided that a yearly income of $75,000 or so just wasn’t fair, especially since they work well over forty hours a week, with the overtime usually spent “attending events, reviewing product information, returning phone calls, responding to e-mails, and performing other miscellaneous tasks.”1

Naturally, these guys sued under the Fair Labor Standards Act of 1938 (FLSA) and Department of Labor (DOL) regulations. The case made its way all the way up to the Supreme Court, which decided the case in a 5-4 decision in favor of big pharm.

The main issue that the court decided here was whether the two retailers ought to be considered outside salesmen, which excludes employees from being able to claim overtime under DOL regulations. After examining several predictable factors, the court (or at least 55% of the court) determined they were outside salesmen.

The main issue that the court missed is the purpose and reasoning behind overtime laws.

In principle, overtime is supposed to compensate an employee for time worked beyond the normal conditions. Now, you might ask: What are normal conditions, and who determines them? In our world, normal conditions are defined by the government experts and encoded deep within state and federal laws. This is part of the problem. For instance, in this case, the plaintiffs sued for “FLSA overtime,” or overtime provided for in the Federal law, which governs jobs that affect interstate commerce (a very broad concept). The FLSA deems overtime as anything in excess of forty hours in a seven-day work week. These magic numbers are rooted in labor rights ideas that date back roughly two hundred years. Generally, they can be fair numbers. Unfortunately, they fail in their implementation here due to their having been encoded into Federal law, the universal application of which is always problematic for dealing with different and unique circumstances.

The ideal situation would be one in which local guilds determine normal conditions by bearing in mind the nature of their labor and the usual impact it may have on the family and spiritual life of an employee. (They may also consider the interests of maximizing production, as it has been repeatedly shown that overwork drastically reduces output.) As is the case with many things, determining what is normal for a particular group of laborers can be more easily accomplished by pinpointing what is not normal. Threats to a man’s family and spiritual life ought not to be considered normal, as the Natural Law does not seek to undermine these affinities.

Of course, this is an imperfect world. Work that materially encroaches on these aspects of a man’s life is unavoidable. There will occasionally be days when a man must labor beyond what is normal. However, the problem can be addressed by providing extra compensation or future time off to the worker, thus discouraging the employer from taking advantage of this more valuable time and providing the employee with recompense for the loss of his own time.

The amount of extra compensation, or the overtime pay rate, should also be determined by local guilds.

Did the plaintiffs in this case suffer in their family and spiritual lives as a result of their pharmaceutical sales work? This author will not pretend to understand the intricacies of the pharmaceutical sales industry or the individual cases here. However, if frequent travel away from one’s home and family was typical of the work (it is not atypical of an “outside sales” job) then perhaps granting the overtime pay would have been fair.

In any event, the Supreme Court, in taking this case, not only showed us the problem with Federal laws that attempt to broadly regulate economics, but also demonstrated its own inaptitude for deciding economic matters such as this. The interpretation of laws, which is the only true function of the court, limits the breadth of knowledge that can be taken into account when deciding a case. The economic principles and usefulness of overtime were completely ignored and overlooked by the court here. As a result of this case—a legal interpretation made by five people—pharmaceutical sales reps will be ineligible for overtime invariably and indefinitely, regardless of specific situations which may threaten social or economic justice (or productivity). Furthermore, this case can now be used as a precedent for U.S. courts to grant or deny other categories of workers overtime pay in the future. Sadly, with the court having employed its power to interpret FLSA standards, it overlooked the basics here, and we can have little hope that sound reasoning will be used to decide future disputes. One wonders if these nine people can truly appreciate their own power and the degree of impact it has on the economy.

The Unions Case

The next case, Knox v. Service Employees, deals with public-sector unions and whether they may force non-members to pay for political initiatives carried out by the union. The case originated as a class action that came out of California and the Ninth Circuit, and is as convoluted as one can imagine. What essentially happened here is that the Service Employees International Union, Local 1000 (SEIU 1000) sent out its annual Hudson notice, which is required to give folks who don’t want to join, support, participate in, or pay for the union the opportunity to opt-out of some of the fees. After the deadline to respond to the Hudson notice passed, the union sent out a new bill for a twenty-five percent increase in employee fees (also known as the “Emergency Temporary Assessment to Build a Political Fight-Back Fund”).

Why did the union do this? Well, Props 75 and 76 were featured in an upcoming California special election, and neither of the proposals were favorable to the union agenda. The Schwarzenegger administration (this was back in 2005) claimed the proposals would help address the California state budget crisis by empowering the Governor to cut back the wages and salaries of state workers under certain circumstances. Clearly, the SEIU 1000 was not about to let Conan the Barbarian pillage their precious incomes, so it sent bills to its members—and non-members—to raise cash to fight the measures. To the union bosses, this seemed only fair considering they were up against a man who intimated everyone with his big muscles, big sword, and wolf pelt underwear.

However, these new and unexpected bills did not go over well, especially with the non-union members. They vehemently objected to the new Fight-Back Fund fees and sued.

The Supreme Court issued its opinion on June 21 in favor of the non-members (i.e. against the unions).

The court’s 7-2 decision addresses some of the constitutional issues surrounding unions. Alito asserts that “if unconsenting nonmembers pay too much, their First Amendment rights are infringed.”2 Almost as if he were compelled to state the obvious, he continues, “On the other hand, if unconsenting nonmembers pay less than their proportionate share, no constitutional right of the union is violated because the union has no constitutional right to receive any payment from these employees.”3

No kidding.

The key problems with this case are found in this admission, where it affirms an unjust law that requires unconsenting members of a union to financially support the union.

See, although the court decided against the union billing the non-members, it upheld the notion that, upon meeting certain criteria (specifically, the Hudson prerequisites laid out in this case and in previous case law), a union may still take money from non-members. Unconsenting government workers are thus still required to help pay for the regular operation of the union. This is called an “agency shop.” It has the effect of making union membership compulsory. For this reason, the law is unjust.

Alito speaks in terms of constitutional rights, but this issue goes beyond the scope of the U.S. Constitution.

The right of people to willfully join a union cannot be contested, as it is a basic human right outlined in political and social philosophy. However, no person should be required, by their government or otherwise, to join a union, as compulsory membership undermines the very argument in favor of free association. It matters not that the members may derive a benefit from the collective bargaining of the union, since the union never had any authority to represent the interests of the objecting worker from the outset.

However, the U.S. Supreme Court appears to disagree with this, and has many times used its authority to declare that forced union membership is allowable. In many more cases, it ignores the issue, either because the legal process or legal tactics prevented the issue from being raised on appeal. Sometimes the court simply allows truth to be replaced with loyalty to a precedent. Stare decisis is, no doubt, an important issue to consider, but it means nothing if it forces a court to repeatedly err by supporting unjust laws. The explicit and admitted abridgment of human rights clearly makes this law unjust.

The case represents another example in which the court has boldly strutted into economic territory and, without the adequate aid of economic and moral principles, affirmed an unjustifiable law with a far-reaching effect on the economy and people’s lives.

The Decency Case

We shall now take some time to examine the FCC v. Fox case, the opinion for which was also released on June 21, and which can best be described as “the decency case.” In today’s society, decency has become an unwelcome ideal. In the few instances in which standards of decency are found, its simple Natural Law definition is swept aside to make way for the intentionally abstruse positivistic understanding. We thus find ourselves facing a threat to human dignity unprecedented in history. Images of human bodies and sexuality are being broadcast to every person possible. The peddlers of these images seek to prey on human souls by relentlessly tempting them to commit grave sins, either in the mind or in the flesh.

This case may not seem, on its face, to be an economic one. Broadcasting offensive language and nudity is often classified as a social or ethical issue, one in which you find religious leaders, not economists, arguing over the finer details. This is the very reason this case should be examined here, though, because our world needs to be reminded of the economic machinations behind certain sins.

Furthermore, economic matters are inherently ethical matters. Woe to him that studies economic rules without regard to morality, for the economy consists of men. Men are composed of bodies and souls. If the corporeal could be separated from the soul, then an amoral approach to the science would be acceptable. Alas, however, the science is not so simple, as the body and soul are not separated until death. So as long as we are living, the relevancy of ethics in the economy cannot be annulled.

It is true that intellectual tradition holds that politics, economics, and ethics are separate schools of thought, but they overlap and compliment each other. For example, with this case in particular, it is not difficult to see how the ethical violations of obscenity and indecency were broadcasted for the sake of economic profit. The crude and carnal nature of the broadcasts was specifically meant to stimulate the temptations of viewers, inducing them to continue to watch the networks’ programming. More viewers mean higher ratings. Higher ratings mean more advertising dollars. Capitalism likes profit, and the moral fallout does not matter.

Using sexuality to achieve profit is hardly a new phenomenon in this world. However, the scale of today’s epidemic is unfathomable. To make matters worse, our modern economic system has created a social philosophy that is actually in favor of spreading this sin worldwide under the pretext of freedom.

Our government and legal system has not yet fully liberated the sex industry, but it seems to be only a matter of time before the “right” to create, view, and trade in sexual products is held as high as any issue in our society. These are victimless crimes, we are told, and thus the unique standards for judging them warrants a degree a latitude greater than should be applied when a person perpetrates physical or financial harm upon another.

Before the court could begin to liberate filthy language and pornography, however, it first had to redefine these crimes to no longer be crimes, but forms of “expression” or “speech,” protected no less by the First Amendment. In its decisions over the years, the court has provided a number of tests that are to be used in determining the “fairness” of any law or government action that seeks to suppress these forms of “expression” or “speech.” For instance, to determine whether something constitutes an “obscenity,” a court must entertain three questions, which are known as the Miller Test: 1) Does the “speech” appeal to the prurient interests of the local community? (“Prurient,” one of many fun words promulgated by the court over the years, can simply mean “lewd” or “lustful.”) 2) Does the “speech” depict sex in a patently offensive way? 3) Does the “speech” lack serious literary, artistic, political or scientific value?4

To be clear, all three conditions must be met for the speech to be considered “obscene.”

Obscene speech is, well, just obscene. The label does not automatically mean the speech is illegal or should be punished. It only means that it does not enjoy strict protection under the First Amendment and thus may be regulated.

That is just the tip of the iceberg as far as the analysis goes, but it helps to show the crazy backwards thinking of the great legal minds of our country’s highest court. They cannot even identify impropriety without a concocted evaluation that, in the end, is no less subjective and arbitrary than a person’s natural sensibilities. Ultimately, they have achieved nothing but confusion in creating this “test.”

After all, need it be so complicated? Couldn’t the analysis stop at part one of the Miller Test? If a speech or expression seeks to arouse, even slightly, the “prurient” interests of a community, then is that not prima facie evidence of its impurity? Should not this type of speech be considered inappropriate and illicit in the public forum? This, of course, is not an argument in favor of a drastic widespread condemnation of free speech laws. On the contrary, a distributist embraces free speech. However, the First Amendment was drawn up as a protection for those who would have the courage to make political arguments against their government. It was not drafted to grant license to any form of sexualized speech or expression. Besides, such a law would be contrary to the Natural Law; it would unfailingly encourage, not condemn, obscene speech, as the Supreme Court’s interpretation of the First Amendment has done. It would ultimately be a cause of the society’s failure, since no society can endure if it lacks respect for the dignity of its own members.

In any event, with Sotomayor abstaining from the FCC case, all other eight justices reached a unanimous decision which supported the proliferation of several instances of the “f-word” being used on the Fox network and “momentary nudity” (to quote the syllabus of the case) on the ABC network.

Despite the court’s decision, Justice Kennedy, in writing his opinion, shies not from enlightening us all with a lucid description of the disgust and revulsion behind the f-word, in which he cites the FCC as saying it is “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language.”5

Also, so as to prevent any varying understanding of what is meant by “momentary nudity,” here is Kennedy’s comprehensive description of it:

The episode [of NYPD Blue] broadcast on February 25, 2003, showed the nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast. During the scene, in which the character was preparing to take a shower, a child portraying her boyfriend’s son entered the bathroom. A moment of awkwardness followed.6

So what reasoning did the court expound to justify this type of audio and imagery on network television? Well, although the FCC attempted to regulate the broadcasts (the usual way of doing so is by way of fines), it was apparently too late in doing so. According to the court, the FCC did not give either FOX or ABC a proper advance warning that this type of content could be subjected to regulation.

A proper warning? How about the inherent warning in the content itself? It was plainly depraved and not suitable for private viewership, much less broadcast television. The celebrities themselves should not have felt comfortable saying those words or acting out that scene, and the networks should have known it was inappropriate for viewers of any age. Did FOX and ABC, which are huge companies that are presumably staffed with highly intelligent people, really have no way of knowing that the nature of their broadcast was both offensive and salacious without the government nanny warning them in advance? Although the rampant immorality in today’s culture does make listening to one’s conscience seem a bit aberrant and unnecessary, it is a ridiculous notion that the networks won this case because they claimed, “We didn’t know any better.”

For making a logical and precise legal argument in support of the court’s decision, credit should be given to Justice Kennedy. He correctly states, “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” He goes on to point out, “This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment.” These principles cannot be denied. What we are essentially looking at is an ex post facto law, which is a law (or in this case an FCC regulation) that is passed after the fact and seeks to criminalize the previously committed act. Ex post facto laws are expressly prohibited by our Constitution, and for good reason. The FCC imposed its regulations after the broadcasts occurred, so the networks claimed they had no way of predicting that they breached a standard beyond which a fine could be imposed.

When the court decided this case, it refrained from making any further determinations beyond the ex post facto issue, such as whether it felt the pertinent content was appropriate for broadcast. It goes without saying that whatever the reasoning behind the decision, it had the same effect as if the court had explicitly deemed the content to be appropriate. Just as Pontius Pilate was able to wash his hands of the matter, so did the nine justices of the U.S. Supreme Court pretend to avert responsibility for a morally specious ruling by issuing an opinion that basically says: “Even if we don’t like this, there’s nothing we can do about it.”

In spite of that claim, there was something they could have done about it. Rampant immorality has not completely overtaken our criminal justice system, and there are still countless local statutes that criminalize disorderly conduct and public nudity. Yelling profanity to the public at large and uncovering a female’s buttocks and breast in public are still offenses that can get a person arrested in most communities in America, regardless of the time off day. So why are the rules any different when a corporation commits the same offense using images on a TV screen, which is broadcasted to far more people than could ever possibly hear or witness similar behavior in person?

This is not an argument in favor of imputing local criminal statutes to these corporations, which would be a legal challenge to say the least; however, could we not employ these laws as a fair notification to the corporation of what content is acceptable for broadcast? Need the warning specifically come from the regulatory agency itself? Does our society not provide a superabundance of indicators as to what is acceptable and what is not?

Perhaps the FCC would be well-advised to use these readily accessible local criminal laws to facilitate drawing up its own regulations. In fact, they could and they should. Could the networks not have done the same? Why do they get a pass when the streaking frat boys get thrown in the slammer?

This raises the question: How do we legally oblige these corporations to use the local laws as a forewarning as to the potential for penalization? Admittedly, this is not a conventional application of those laws. Although, if one considers the implications of corporate personhood, in which corporations are treated as persons under the eyes of the law, then the matter becomes less difficult to apprehend. For instance, suppose this humble writer were to set up a TV screen on a public playground and act out similar scenes that were questioned in this lawsuit in front of a video camera wired to that TV. Are there laws under which a punishment could be imposed for this? Is the behavior committed by FOX and ABC much different? Aside from the wider audience they enjoy, the major difference lies only in the fact that, as broadcasters using public airwaves, they are subject to Federal regulations, not local criminal laws. Recognized as persons under the law, these corporations sheltered themselves from punishment under Due Process, but evaded laws that would otherwise punish individuals. This is reprehensible logic.

This whole debacle could have been averted in a distributist society in which local broadcasting guilds, not a Federal regulatory commission, could have set clear standards prior to broadcast. If a guild failed to do this, as the FCC supposedly did, then there could still be consequences in that many other guilds would have prevented the broadcast just the same (presumably costing the networks advertising money for the loss of viewers in those areas) and could have sought to impose their own fines on the networks based on a prior written contract. The worst situation would come if every single guild decided to broadcast the content, but at least in this situation objecting minds could have some hope in appealing to local authorities and not the FCC.

By this decision, the Supreme Court has taken our society just one step closer to accepting immoral behavior as a “right.” Here, the only discernible and redeeming purpose of that behavior is to make money, which apparently takes precedence over civility and human dignity. As the mad King Lear put it, “Let copulation thrive….”7

The Obamacare Case

The opinion in this case is a real whopper, clocking in at nearly two hundred pages, including the sixty-five page dissent. Surely a hundred times as many pages have already been expended in offering analysis of this case, and a hundred times that number are yet to come. An attempt will be made here to make an analysis that is unique, not only by examining the ruling with a distributist lens, but also by revealing the fundamental oversight made in the current discourse concerning the role of government in our lives. Rest assured, this will not take more than two hundred pages.

What pages are used here will focus on the individual mandate. Not that the other issues, such as the regulations of the health insurance industry and the remorseless financing of contraceptives and abortion, are unimportant. They are, however, ancillary in terms of legal significance. As the court noted, the individual mandate contained within the Obamacare law is the law. Obamacare has no meaning without the mandate. The court very well could have thrown out the entire law if it found the mandate to be unlawful.

But five justices of the court insisted it was not unlawful. The path taken to legitimize the law was to argue that the Commerce Clause, which enables Congress to regulate “interstate commerce,” and the Necessary and Proper Clause, which the Government argues allows Congress to do just about anything else, allowed Congress to regulate the health insurance industry by imposing a penalty upon those consumers who did not buy health insurance. The main contentions with this argument can summed up in two parts: 1) those who opt not to purchase insurance are not participating in commerce and not subject to regulation under the Commerce Clause, and 2) a proper reading of the Necessary and Proper Clause does not grant the government power to regulate the economic decisions of our lives.

The government also argued, tangentially, that the penalty imposed for non-compliance with the mandate could be construed as a tax. Unfortunately, Chief Justice Roberts, as we all now know, bought into this argument, giving the liberal majority the votes needed to uphold the law. Roberts argued the tax argument was acceptable even without the support of other enumerated powers, such as the Commerce Clause and the Necessary and Proper Clause.

In fact, Roberts outright rejected the first two arguments, and thus did not side with the liberal justices that would have upheld the law under the Commerce Clause and the Necessary and Proper Clause. The majority of the court therefore believed the first two questions to be without merit. As the dissent argues, Obamacare, and specifically the mandate, “gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers.”8

The dissent also shrewdly illustrates the peril in the Necessary and Proper theory:

The Government was invited, at oral argument, to suggest what Federal controls over private conduct (other than those explicitly prohibited by the Bill of Rights or other constitutional controls) could not be justified as necessary and proper for the carrying out of a general regulatory scheme.9

The question may seem a bit cheeky if not for the grim answer provided by the government: None. Thankfully the principles of limited government are still pervasive enough in our society that the Supreme Court has still been unwilling to unleash the total maelstrom of government power via this flimsy necessary and proper argument.

The dissent vehemently disagrees with the ultimate premise of the court’s ruling that the mandate is a tax, enforceable under the Taxing and Spending Clause. The lower courts also rejected this theory. Yet, Roberts and the majority have given new meaning to Congress’ taxing power.

So that is how we got to where we are now, without the ability to further question the legality of the individual mandate, at least not in the courts. It is a form of taxation, at least in the eye’s of the court. Form of taxation is a fair way of characterizing the mandate under this newfound interpretation of the Constitution because the court, as the dissent points out, in redefining the mandate as a tax, has essentially rewritten Obamacare, which nowhere designates the mandate as a tax.

Tax or no tax, is the mandate sensible in a distributist society? Obviously not. Consider three main principles of Distributism that are offended by the mandate.

First, every good distributist knows that local government is preferable to non-local. Subsidiarity demands this. It also demands that small government is preferable to large government. Obamacare, a federal regulation, has been enacted at the highest levels of government and approved by the highest court in the land. If Obama is reelected this year and the law survives, it will only mean greater government expansion over time. The feds will forever be scrambling to try to remedy the downfalls that are sure to come from this type of micromanagement by a state. Consider the observations of Pope John Paul II from Centesimus annus:

In recent years the range of such [government] intervention has vastly expanded, to the point of creating a new type of State, the so-called “Welfare State”. This happened in some countries in order to respond better to many needs and demands, by remedying forms of poverty and deprivation unworthy of the human person. However, excesses and abuses, especially in recent years, have provoked very harsh criticisms of the Welfare State, dubbed the “Social Assistance State”. Malfunctions and defects in the Social Assistance State are the result of an inadequate understanding of the tasks proper to the State. Here again the principle of subsidiarity must be respected: a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view to the common good.10

Principles of subsidiarity by themselves should have been enough to stop this law. Our justice system needs to be more appreciative of local solutions and more suspicious of federal authority.

Second, free will is a most sacred tenet of distributive thinking. Man not only has a free will, his nature is defined by his free will.11 Questions need to be raised anytime a law tyrannizes man’s free will, as is done with the Obamacare mandate. This is especially true when the will plays an important part in the architecture of a society, as is the case with our economic system. Both capitalism and distributism favor the will of man as the author of the market transaction. Undermining this threatens the very principles that the system is built upon.

Regulating the will is one thing, but forcing it to act is a totally different matter. It is a debasement of human dignity and contrary to human nature. Forced commerce is therefore unnatural. People will resent this form of market, as they do in socialism. The market will resent this form of market. As the dissent notes, the extent of the problems are unpredictable, but they are sure to be bad.

Third, property rights are also inseparable to human existence and essential in a distributist world. In fact, the distributist holds contempt for capitalism because the system affords no guarantees for the protection of property.12 The Obamacare mandate clearly violates property rights in an unprecedented way by using the power of the government to force every citizen to engage in a private contract with an insurance company. (Not to mention, the government now also heavily regulates and controls the terms of that contract.) This is far from a tax because instead of taking money to provide a service for the common good, the government is using its power of coercion in an attempt to mastermind the market. The role of the state is to protect private property, not to compel people to part with it.

With our free will and property rights under siege, perhaps now we can better understand the words of John Paul II, again from Centesimus annus, his tribute to Rerum novarum,

Socialism considers the individual person simply as an element, a molecule within the social organism, so that the good of the individual is completely subordinated to the functioning of the socio-economic mechanism. Socialism likewise maintains that the good of the individual can be realized without reference to his free choice, to the unique and exclusive responsibility which he exercises in the face of good or evil. Man is thus reduced to a series of social relationships, and the concept of the person as the autonomous subject of moral decision disappears, the very subject whose decisions build the social order. From this mistaken conception of the person there arise both a distortion of law, which defines the sphere of the exercise of freedom, and an oppression to private property. A person who is deprived of something he can call “his own”, and of the possibility of earning a living through his own initiative, comes to depend on the social machine and on those who control is. This makes it much more difficult for him to recognize his dignity as a person, and hinders progress towards the building up of an authentic human community.13

Let us turn now and think about how the prevalent opposition to the law, piloted by the American psyche, cherishes the very principles that led to its creation.

The law has been the target of a vast crowd of hecklers since it was proposed, and this Supreme Court decision has roused even more anger and distress. All of the negative reaction to the Obamacare mandate has been in the spirit of American individualism and liberty. Freedom is under fire, we are told. Not just individual freedom, but religious freedom as well. According to the critics, from conservative commentators to U.S. Catholic bishops, people and churches have a right to do and say what they believe, so long as it does not harm others, without interference from the government. They assert that the role of our government and our Constitution is to protect individual liberty, not choke it.

This line of reasoning is demonstrative of the confusion over the importance of the individual in the order of a society.

Aristotle used the term polis to describe the communities in the world. For Aristotle, there was no separation of the individual from the polis. They were intertwined, and the good of one necessarily complimented the good of the other. Today’s world no longer has an understanding of polis, and the ignorance of modern politics merely seeks to pit the individual against the state, as if it were the natural function of the state to destroy the individual.

What we mean today by “individual” is logically implied by, and is correlative with, “state,” “church,” and “society,” but is utterly incongruent with polis. Modern individualism conceives each human being to have a sphere of privacy wherein are generated activities and ends which the state, as state, can never order or direct to their completion and perfection. Because of this essential incompetence of the state in certain areas, other forms of community, of which the church is the most familiar and convenient, although by no means the sole example, are both possible and necessary. There is a familiar aphorism today, that the state exists for the individual and not the individual for the state. The most common characterization of totalitarianism in the Western World is that it reverses this order and treats the individual as if he exists for the state. One must not, in approaching Aristotle, attempt to characterize his thought in terms of such an aphorism, because it is not possible to substitute polis for state. It makes no more sense to say that the polis exists for the citizen, or the citizen for the polis, than to say that the mind exists for the man or the man for the mind. According to Aristotle man exists ultimately for the sake of the good life, and the good life is the same for one man and for a polis. The means-end relationship we predicate of state and individual does not subsists between man and polis, and all inferences which assume such a relationship are false.14

That the individual, and his liberty, is of the utmost significance in a society, is a claim that cannot be reconciled with man’s nature as a societal animal.

Furthermore, this is a backwards approach to political organization, as St. Thomas Aquinas teaches us: “The jurist says (Pandect. Justin. lib. i, tit. iii, art. ii; De legibus, etc.) that ‘laws should be made to suit the majority of instances; and they are not framed according to what may possibly happen in an individual case.’”15

It is impossible for the human lawmaker to formulate laws that would serve every man in every individual instance, and if this were the goal, we would thus find that no law is worthy of ratification. Individual freedom can, and should, be one of the benefits of laws, but it cannot be the purpose of the law in and of itself. Rather, in explaining his rejection of the theory of the individual, the great teacher tells us:

Whatever is for an end should be proportionate to that end. Now the end of law is the common good; because, as Isidore says (Etym. v, 21) that “law should be framed, not for any private benefit, but for the common good of all the citizens.” Hence human laws should be proportionate to the common good. Now the common good comprises many things. Wherefore law should take account of many things, as to persons, as to matters, and as to times. Because the community of the state is composed of many persons; and its good is procured by many actions; nor is it established to endure for only a short time, but to last for all time by the citizens succeeding one another, as Augustine says (De Civ. Dei ii, 21; xxii, 6).16

A society begins to dismantle itself when it decides to embrace the individual over the common good. Pope Leo XIII, in his 1899 encyclical on the Americanism heresy, Testem Benevolentiae Nostrae, describes this as the “confounding of license with liberty.”17 Does liberty mean we can do whatever we want and no one can tell us what to do? Where does liberty end? Where does it begin? Who decides the boundaries of individual liberty, if there even are any?

Is an individual’s health even a consideration in his overall liberty? It is no surprise that it was in the name of healthcare that the Obamacare was able to pass, despite its sweeping persecution of the common good, for it is rational to argue that health is a supreme consideration (insofar as the Natural Law is ignored) in a person’s liberty, since without one’s health, any available liberties become rather pointless endeavors. If this is the case, then all else being equal (and ignoring for the moment whether Obamacare actually works to expand healthcare) Obama’s mandate is nothing more than a law that weighs the greater liberty of health against the lesser liberty of economic choice.

Although Obama’s individual mandate may seem as though it is an affront against liberty, it is actually the result of the application of individual rights and individual autonomy above all other considerations. Because the purpose of government has been redefined to serve the individual, and not the common good, the individual and the state are caught in a notorious tug-of-war. This is a game in which the individual is not favored to win. The power of the state is very great. Thus, we see the government being the ultimate arbiter of individual rights, with Congress, the President, and the Supreme Court all ultimately deciding that government has the right to intrude upon the economic liberties of some in an attempt to secure the health of others.

Obamacare is simply the greatest achievement of a society infatuated with individualism.

A society attuned to the common good would not allow its government to pass this law.

While the American liberals and conservatives bicker over Obamacare and other issues, we distributists can only sit back and laugh—or cry—at such a spectacle of irony. Because although each side approaches it differently, they are ultimately fighting over the same ideal: individual rights. The only difference is that the Left tries to achieve this with more government, while the Right seeks to do it without government. Unfortunately, beneath the trajectories on which they fling insults at each other, social justice lies dead.

Likewise, the individual agenda, or the “cause of liberty,” as it has recently been called, seems very appealing when one faces the vast power of the modern state, but it is actually self-destructive, since the cause for individual liberty is so easily used as an excuse to oppress others either politically or economically.

The state exists not to destroy the individual. Nor does it exist to prop him up. Nor does it exist to ignore the individual. The state exists to serve the common good. It is only subsequent to this that the individual derives any benefit from the world. Individual rights, therefore, are best served by a state that makes laws for the common good.

Was this law designed for the common good? That is the first question that should be asked by any judge reviewing the validity of any law. Until the American Supreme Court understands this, it will continue to be distracted by the vacuous tug-of-war between the individual and the state.

Conclusion

Distributists do not kid themselves that a society’s economic system can boast both justice and growth if there are no laws that prevent the rich from taking advantage of the less-privileged, the dishonorable from cheating the righteous, and the powerful from oppressing the meek. Laws ought to be written to help regulate these types of issues. Every law worth writing merits enforcement, and a judiciary is necessary to provide judgment and equity when a law seems unclear or unfair.

However, the nine justices of the Supreme Court have extraordinary power and authority, comparable only to the power of the Lord Chancellor and the King of England, from which we inherited the common law and derived nearly our entire legal system. They are the ultimate arbiters of justice in America, and they answer to no one. Their power to interpret laws is intrinsically the power to make laws, as has been demonstrated throughout the history of the court. When it comes to economics, this presents problems, as we have seen from the cases reviewed above.

Those four cases were issued in the span of eleven days. So, in less than two weeks, the court issued opinions on major economic issues, from overtime and labor unions, to the broadcasting and healthcare industries. These opinions will have a significant impact on not just the health, but also the morality, of the economy.

The broad effect of their decisions; the limitation of understanding used in formulating their interpretations; their maniacal support of bad law in the name of stare decisis; their loyalty and preference for the Federal government over local government; and a lack of understanding as to the proper purpose of laws being for common good, not the individual—all of this has made the justices of the court incapable of issuing reliably sound economic (and moral) decisions over the years.

Nicholas C. Hosford
Nick Hosford is originally from New Orleans, Louisiana. He has studied Economics and Political Science for many years and received his B.A. in both subjects from the University of Alaska in 2005. He also received a J.D. from Birmingham School of Law in 2009. He lives with his wife and three children in Vestavia Hills, Alabama. They regularly attend the Traditional Latin Mass.

Nick, I can respect that and I’ll answer to your finishing points to end this disagreement.

1. JPII’s statements are from his encyclical “Evangelium Vitae”, and while all encyclicals are not categorically given ex cathedra status, the particular statement from JPII is quoted in the Catechism in the same section you said I should look at.

Let me quote at length the section which you define as “vaguely discussed”:

“Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty IF (emphasis added) this is the only possible way of effectively defending human lives against the unjust aggressor.
If, however, non-lethal means are sufficient to defend and protect people’s security from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.
Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm-without definitively taking away from him the possibility of redeeming himself-the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically non existent.” (JPII, EV).

While there isn’t a specific section heading assigned to these paragraphs, I’d say the message here is anything but vague.

2. Of course, on papal infallibility, as you’ve just noted, is only defined towards ex cathedra statements of the pope or of the combined college of the Magisterium; so any actions by the pope which did not fall under those specifications of teaching of faith and morals in his specific papal office (i.e. almost any political/temporal actions) are not infallible, and would therefore be fallible, such as the political/temporal actions of any other human.

3. I think if you took a close look at the parliamentary system as it currently exists, it’s quite clear that near to no separation of powers exists, as the executive, often a prime minister, is elected by the legislative power and is utterly beholden to them.
Looking at historical example, parliamentary systems have definitively been less stable than the American system; Israel, Italy, Canada, the French Fourth Republic, and Weimar Germany come to mind. Also, I can’t think of any parliamentary regime that has lasted as long as the American system, and the relatively good economic standing of America compared to parliamentary regimes in Europe and the levels of political freedom allowed both prove that the American system has substantially better effects for the country than the parliamentary system.

4. I don’t think you can say that revolutions without the pope’s blessing are necessarily abusive in power; how many times has the pope actually advocated for or supported the overthrow of the government? For reasons of diplomacy, no pope would pursue such a tactic without the support of the majority of the people in the country. Also, the pope cannot be counted on to call for revolution when it is needed; in the case of Nazi Germany, for example, the pope resisted advocating against the Nazi government for legitimate fear of reprisals against Catholics, Christians, and Jews. If the pope could not speak out against the Nazi regime in any public way, how would he communicate that citizens of the regime were authorized to rebel without fearing the same reprisals?

In a modern way, Bellarmine’s explanation of the pope’s power, as far as his first several customary restraining powers, apply to the bishops in jurisdiction of specific Congressmen/women; however, this jurisdiction presumes that the representative is Catholic. In the American system, however, I don’t believe that a revolt by all Catholics (which although are a large percentage of the population, are not all necessary faithful and in communion with the Magisterium) would do a terrible lot, and very few offenses by the government would necessitate such revolt, as the government has a habit of changing according to the will of the people.

5. Loving v. Virginia did nothing even close to defining “a fundamental right to marriage”; it was a case regarding racial discrimination under the Equal Protection and Due Process clauses of the 14th Amendment.

To quote from the opening of the majority opinion:
“This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.[n1] For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.”

The case was not concerning the plaintiff’s “fundamental right to marry”, but the plaintiff’s right to equal protection under the state’s marriage laws, which prohibited interracial marriage. The court ruled that prohibiting interracial marriage violated the equal protection clause and unjustly discriminated against mix raced couples, not that the couple had a fundamental right to marry each other, there’s a large difference between your assertion and the facts of the case.

6. While I don’t know much about the Gallup Poll’s statistical methodology, the difference is between those who identify themselves as “pro-life” and “pro-choice”, and I think even using those descriptors in a poll will lead to inaccurate results. Gallup even admits that political polarization is likely one reason that more Republicans in recent years publicly identify as “pro life”, whereas they may have declined to publicly make a statement due to the issue not being as discussed as it is now.

Those points aside, if your point on the majority opinion is valid, it just illustrates that majority opinion is often, but not always closer to the common good than the opinion of many politicians, and that this may be the exception rather than the rule.

It’s likely that if biological data had been promulgated earlier on in a wider sphere of public influence showing that all fetuses are separate organisms than the mother, and are in fact genetically individual, that public opinion would have found the right to life of the fetus/baby to be inviolable.

Alex,
We’ve both started to veer off topic. There are several things you said to which I’d like to respond, and then I’ll let you have the last word:

1. JPII’s comments on capital punishment were not ex cathedra. They are not the “Catholic position” on capital punishment. Those were fallible statements by a fallible man.

This 2004 statement is also fallible: “There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.” (http://www.ewtn.com/library/CURIA/cdfworthycom.htm)

I would encourage you to review Part 3, Chapter 2, Article 5 of the Catechism, dealing with the 5th Commandment. Although capital punishment is vaguely discussed, there is no distinct section dedicated to it, yet there are separate sections dealing with abortion, euthanasia, suicide, and other right to life topics. That article also contains a few statements about the taking of life for the common good.

2. This brings us to the matter of papal infallibility. It is ironic that you quote Lord Acton’s chilling statement that “absolute power corrupts absolutely.” Few realize that the original context of this oft quoted statement was when Lord Acton vehemently lobbied against the proposed doctrine of papal infallibility, which is a “divinely revealed dogma.” Furthermore, perhaps unbeknownst to Lord Acton at the time, this dogma was always in effect, even though it had not yet been explicitly recognized by Vatican I. The council declared that the “apostolic teaching [of the successors of Peter] was embraced by all the venerable fathers and reverenced and followed by all the holy orthodox doctors, for they knew very well that this see of St. Peter ALWAYS remains unblemished by any error….” (Emphasis added.)

Outside of papal infallibility, Lord Acton may have been correct- absolute power corrupts absolutely. Our Blessed Lord however, before his death, gave us the divine gift of the apostolic office, to guide us without error. So, Lord Acton was only 99% correct.

3. Many people place much faith in the American government’s separation of powers. Parliamentary systems, which more or less merge the legislative and executive “branches,” don’t follow Montesquieu’s ideas quite as faithfully, but many (most?) have proven to be a no less stable form of government than the American system.

4. As far as the lessons of history contradicting the notion that the Holy See can and should play a role to keep governments in check, it is difficult to effectively cover ground here without specific examples. Although, it may not even be worth the effort to list them off, since many have already long ago been acknowledged and addressed by St. Robert Bellarmine.

It is important to consider Bellarmine’s explanation of the pope’s power to restrain governments. “Their custom is first to reproach them in a fatherly way, then to deprive them of the sacraments though an ecclesiastical censure, and finally to absolve their subjects from their oath of allegiance and deprive them of their regal office and authority, if the matter requires it.”

This shows that, in the end, the Church’s temporal power (not mere authority) over governments is no greater than the willingness and ability of a Christian people to resist their government. Is this absolute power? No. Thus the Holy Father’s “absolute power” remains spiritual, not temporal, since it is limited only to declaring doctrine for the the Church, a task in which he is protected and guided by the Holy Ghost.

Furthermore, people may resist their governments, to which their is a Christian duty to remain loyal, only when the pope allows it. How many revolutions have there been, how many governments have been overthrown, how many rulers have been assassinated, without the blessings of the Holy Father? If there has been any abuse of this power in removing governments (even evil ones) that deserve the Christian’s allegiance, it has not been on the part of the papacy, but rather on the part of people arrogantly acting without the pope’s blessing.

5. Of course there is a right to marry. Even the wacky U.S. Supreme Court has recognized a “fundamental” right to marriage. See the “landmark” Loving v. Virginia (1967) case. The questions is not the right; the question is the definition.

I agree that not all human rights can be protected equally. However, they should be protected as much as possible, as the Catholic position on capital punishment is that it is only necessarily licit to order capital punishment when containment is not possible, and John Paul II noted in Evangelium Vitae that our penal systems have so improved in many modernized countries that execution is only rarely the sole effective means of protecting society from the convict.

It’s obvious from an American sense that the government protects the people from itself; that’s the very reason for the separation of powers in the federal government. Madison in Federalist 47 says “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny”, and it is to prevent tyranny by the government and the trampling of the rights of the people that our government is structured the way it is.

I’d argue that what drives libertarians to dislike government intervention (as libertarians are not anarchists), is the widespread corruption in government, combined with the overall economic efficiencies that government often produces when it attempts to regulate and solve what appears to be a problem.

You argue that because rights were misjudged, and found to include immoral acts, such as abortion and contraception, that the idea of rights is flawed. However, merely because human judges extended natural rights to include things they rightly should not have does not speak against the concept of rights, but against the judges themselves. Saying that rights are at fault is similar to saying that if canon law is misinterpreted by a canon lawyer to allow someone to persist in scandal without reprimand then the canon law is at fault rather than the lawyer who misinterpreted it.

In Roe vs. Wade, the majority of justices presided on a false premise that science had not yet proved when life began, when it in fact had. If the justices had not proceeded on this premise, they would likely have determined that the right to the life of the child had precedence over the right over the right to “privacy” of the woman (which is in itself a poor interpretation of one of the amendments present in the Bill of Rights, wherein the contraception cased is based on this interpretation).

I haven’t seen anyone argue that there is a right to commit homosexual acts; while I’ve seen the right to same sex marriage proposed, it’s only because of a misunderstanding both of what marriage is, and what a right is. No one has a right to marriage.

I don’t think that having the pope directly ruling in a temporal manner would solve much; while I’m no church historian, many of the popes who had directly political power fell sway to that and neglected their spiritual and theological duties, which serves to explain why we had a string of rich, shallow, and corrupt popes in the middle ages.
There’s a reason so many popes in that era fell prey to temporal corruption; as Lord Acton put it, “Power tends to corrupt, and absolute power corrupts absolutely.” There’s a reason Dante Aligheri had too many popes to assign to the Inferno.

The society’s moral authority should come from the Church, which forms the conscience of individual members and instructs them to act according to Catholic teaching, but the Church should not propose exact public policy measures, as it does not have the expertise or the standing to do so; and in doing so it usurps the vocation of laymen.

I strongly doubt you could ever make the case that the majority of people have been in favor of abortion; before Roe v Wade there were sever strictures on abortion and it was illegal in many if not most states, before the media was overtaken by an extremely vocal minority.

Slavery was seen as the lesser of two evils behind widespread social anarchy; the Church itself did not recognize slavery throughout time as an irreconcilable evil, although there was the groundwork in Scripture to recommend its abolition, Paul also said in Colossians 3:22 “Slaves, obey your earthly masters in everything; and do it, not only when their eye is on you and to win their favor, but with sincerity of heart and reverence for the Lord.”

While we could argue that Greco-Roman slavery was different than American slavery, the point is that it was an evolving recognition of human rights which led to the end of slavery, not an attempt to strive for the common good.

While the pope’s authority in doctrinal matters concerning faith and morals would positively impact the nation, he is not politically or economically infallible, and thus not necessarily any more capable to run America than any other man (though it can be rightly said he may have more wisdom than many other men, wisdom itself is not the sole thing needed to successfully run a nation).
America, run the way it was founded, under the Constitutional rule of law with a limited government and separation of powers, is exceptional, and would likely not fail the way so many European nations are due to their fiscal and political irresponsibility.

While the country isn’t doing so well now, many of the reasons it isn’t is because of deviations from the founding principles, such as the inalienable rights to Life, Liberty, and pursuit of Happiness (properly understood in the Aristotelian sense as the pursuit of moral virtue).

Alex: Obama may sincerely believe he is acting for the common good, but that would only demonstrate he has a serious misunderstanding of the concept. (Not that it needed to be further demonstrated.) The administration’s entire healthcare law (HHS mandate included) is totally insane because it tries to service EVERY individual. Again, serving the common good means serving MOST citizens, not all.

Human rights, including those outlined in the Constitution, should be promoted by government. However, not all human rights are created equal. The degree to which government should promote these rights varies. For instance, within the right to property, a home should be held higher than a pen. The only commonality between all human rights is that none can be completely protected for every individual. Even the right to life must be offended against certain individuals (e.g. capital punishment) in order to protect the lives of others.

Healthcare is an important human right, and the state should promote healthcare, but it can never universalize it anymore than it can universalize wealth or happiness. I think we can agree Obama doesn’t get this.

I disagree that individual rights are the “last ditch protection” against government intrusion in our lives. Who protects these rights, if not the government? You’re trusting the government to protect you against itself? Isn’t this the problem? Isn’t this silly notion the very thing that drives libertarians to foolishly, but appreciably, abandon the idea of the state?

Before the threat of revolt, the best thing to keep leaders in check is their conscience. When there is no conscience, or when evil men rule, Robert Bellarmine outlines that we can turn to the Pontiff for direction as to when to resist civil authority. In fact, Bellarmine boldly asserts that the Pontiff “can take away political government from one prince and give it to another if that is necessary to the spiritual end.”

For centuries this was the arrangement. Men were the subject of the king, but the king was the subject of the Pope. Present on this earth, the Pope’s authority extends to direct not merely spiritual matters, but temporal matters as well. The Protestant revolts among European nations destroyed this ideal, and left people grasping for a new ideal to replace the earthly moral authority that they had abandoned. The new ideal was individual rights. Individual rights encoded in revolutionary documents replaced the Roman Bishop as the arbiter of limited government.

Unfortunately, this lent an unnatural significance to human rights, making them sacred for every individual. Furthermore, it made room for secular forces to redefine human rights for our society. It is impractical to organize a government around the protection of human rights for EVERY individual, when achieving this for MOST individuals is already such a lofty goal. Yet, matters are made worse when individual rights, which were employed to replace our moral authority on this earth, can now include such abominations as abortion, contraception, homosexual acts, etc.

But this should not surprise us. When society lacks a moral authority to gauge the validity of a proposed “right,” then anything goes. It may be true that in the case of the HHS mandate that the majority of people are more in touch with the common good. However, the citizens of our democracy, or republic, if that term is more pleasing to you (either way, it’s government representative of the people’s will), have a poor track record. For decades, until recently, the majority has been in favor of abortion. At the beginning, when John Adams was praising a “moral and religious people,” the country tolerated human slavery. Every sin that happened in between need not be listed in order to appreciate that the demise of our society is entirely due to its ignorance (or outright rejection) of the Pope’s temporal authority.

Americans (as well as other nations) need to stop pretending that they are too exceptional to fail. From this arrogance we ousted Christ’s Vicar from political administration, and from there we began to make our own rules. As Hamlet put it, “There is special providence in the fall of a sparrow.”

It appears that I misinterpreted your meaning concerning what the Court should do as far as its sphere of information.

You yourself say that the Court examined “several predictable factors” and determined that the reps were outside salesmen, although the court was divided on this.
What this says is that the DOL regulations are likely not clear enough, as it split the Court on deciding a mere technical matter.

However, the Court deciding either one way or another would be a decision according to the rule of law, as opposed to the Court deciding that, due to the reasoning of overtime pay law/regulation, the representatives deserved overtime compensation despite their status as outside salesmen or not.

While I don’t believe you’re suggesting that the Court should have taken that measure, and that you (and I) believe the matter should have been relegated to a matter of a local organization, the problem is that we have a Department of Labor, and not a set of guilds, so the Court rules when it doesn’t necessarily have to.

The Court did not rule on whether the law was good or not, but the exception for outside salesmen exists, and the way to change that would be through legislation, rather than jurisprudence.

As regards to my statement about the ObamaCare mandate, I was referring to the HHS mandate which requires businesses to provide artificial contraception, sterilization, and abortion to their employees through subsidizing those services through their group insurance plans, which I am sure you are well aware of.

The point I was trying to make with the suggestion that the HHS mandate is seen by the Obama administration and the Department of Health and Human Services as “for the common good” was not that it was indeed for the common good, as the majority outside the administration would likely agree that it was not.

The point I was trying to make was that in a pluralistic society such as America, where is it likely that politicians whose views oppose the true common good will be elected and will effect public policy, it is in the interest of the common good that policy is first considered in the light of individual rights and how it will affect those rights, which of course, are not completely absolute in of themselves.
Because individual rights are not absolute in and of themselves (ie yelling “fire” in a crowded room when there is no fire is not protected under the First Amendment right of free speech because of the danger inherent in such action when performed irrationally), the consideration of the common good is possible, and politicians should examine legislation that promulgates the common good.

However, as there is such philosophical division in America over what comprises the common good (although this does not change what the common good in essence is), individual rights serve to protect the common good against false perceptions of the common good. I think we could agree that China in its current state, neither promotes the common good, nor respects individual rights. This is not because the Chinese government purposefully seeks out evil to perpetrate on its people (hopefully), but because the Chinese officials see the good as something different than what it actually is.

Individual rights then, serve to protect the people from the government promoting an improper perception of the common good, although they can be misapplied of course.

John Adams said that “our Constitution was made only for a moral and religious people”, and the recent problems in government are less attributable to the failure of the Constitution than to the failure of many of the people, both morally and religiously.

I’d emphasize that the idea of individual rights only serve as a last ditch protection against the improper imposition of a misperception of the common good on the people.
While individual rights are not wholly indisputable, they have a place in protecting the people from their government, which often tries to create its own common good, rather than what is truly the common good.
That’s not to say that the government doesn’t have the obligation to promulgate the common good, but without the recognition of individual rights, the citizens are left vulnerable to a tyrannical, morally ignorant government.

I wasn’t attempting to assert that government by many as opposed to few was intrinsically more valuable, but was more valued in America.
Although the government should not perform actions solely because the majority of the people support them (which is why we have a democratic republic instead of a pure democracy), the mass majority of people often understand simple morality more than government agents, who risk corruption due to peer pressure and through donations.
For example, most Americans are against both the HHS mandate and same sex “marriage”.

In both of these cases, the people are more in touch with what is in the common good than the politicians, and acting according to the will of the people rather than the will of popular governance is more conducive towards serving the common good.

Nick, I haven’t read the whole article, but you made a mistake at the outset of it. You said that there were seven men and two women on the SC. Actually, it’s six to three, Bader Ginsberg, Sotomayor, and Kagan all being of the feminine persuasion. Hope I spelled all those names correctly.

Alex,
Regarding your comments on the SmithKline case, I do not think I said the SCOTUS needed to expand the amount of information it considers in deciding cases. The point I was trying to make is that because a policy of strict legal interpretation prevents the court from considering “outside” issues such as economic principles and social justice, the SCOTUS is incapable of properly deciding this case and other economic cases, and should thus refrain.

Why do you think the case was decided according to the “rule of law?” When reading the case, it seems to me that the dissent’s interpretation of “outside salesmen” is no less arbitrary than the majority’s. Bear in mind, this was a 5-4 decision.

Local guilds are the best way to manage economic policies such as overtime pay. When there is a dispute that cannot be resolved within the guild, it may be appealed to the courts, but judges should be hesitant to intervene, especially if their decision in the case would have influence economic matters.

The underlying rhetorical question is: Is it appropriate for judges to have such vast power over the economy? I answer no, because the complexity of the economy cannot be properly managed when there is a tendency to overlook the fundamentals.

Regarding your comments related to the Obamacare case, I think it is problematic to characterize the healthcare law as lawmakers “trying to enforce what they see as “the common good.” Although the lawmakers may see it this way, and may even sell it as such, this does not make it so.

Where the purpose of government is concerned, serving the common good means serving MOST of the citizens. (Belloc describes the distributist solution as one that would “put property into the hands of most citizens.”)

Serving the individual is an attempt to serve ALL of the citizens, which simply cannot be done. Yet, the mandate attempts to do this. It does it by socialist means, no less. (Belloc goes on to describe the “collectivist” solution as one that would “put the means of production into the hands of the political officers of the community, to be held in trust for the advantage of all.”)

I know it is difficult to see how individual rights can be opposed to a sensible political order, but the idea may be more easily approached if we first look at the sustainability of a society whose government seeks to serve the individual over the common good. It is an insane proposal that each and every individual can be fulfilled by either government action, which is the communist approach, or government inaction, which is the anarcho-libertarian approach.

Regarding your statement that the government agency behind the mandate acted “undemocratically,” I will simply say that the benefit or advantage to democratic government action eludes me. Is government by many necessarily better than government by few?

Nicholas, while I agree with you on many points in this piece, the one area I have a bone to pick is in your conception of the Court’s role in society.

In considering the Overtime case, you state that “the interpretation of laws, which is the only true function of the court, limits the breadth of knowledge that can be taken into account when deciding a case”, but then you go on to say that the Court needs to expand the amount of information it considers in order to rule that the law should be changed so the sales representatives receive overtime compensation.

While I agree that it would be better that the representatives receive compensation, you state very clearly that the Court’s only true function is to interpret the laws, and I would consider it judicial activism in creating policy for the Court to rule any other way than they did.

As far as the tax issue on the ObamaCare ruling, it makes sense that the penalty imposed for disregarding the mandate can be seen as a tax, as it’s collected and assessed by the IRS, among other factors. The fact that this ruling extends the permissible edge of tax law is somewhat troubling however, as this is the first time the government is levying a tax on people for not doing something, as opposed to excise taxes laid on tobacco products, for example.

In my opinion, the role of the Court has to be to support individual and organizational (such as the Church and business) rights because in order to only interpret the laws without creating new policy via judicial activism, the Court is obliged to only act through the legal framework, which is itself supposed to consider the common good.

I would consider that restriction in some way applicable to the national bureaucracy in that the HHS mandate, which is causing so much turmoil right now, is an example of a government agency undemocratically trying to enforce what they see as “the common good” on the nation and disregarding individual and organizational rights along the way.

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